Those who are legally permitted to place children for adoption in Virginia include the child’s biological parent or parents, and licensed child-placing agencies.
In other words, prospective adoptive couples are not limited to agency adoptions. A significant number of adoptions in Virginia are direct parental placement adoptions, where a birth mother places her child directly with the adoptive parents she has chosen.
Since a birth mother may place a child for adoption directly with the adoptive parents of her choosing, prospective adoptive parents need to think strategically about how they might come to the attention of such a birth mother. Prospective adoptive parents use all sorts of channels to spread the word of their interest in adopting, including the internet and networking with family, friends, medical providers, adoption attorneys, pastors, and others who might be “gatekeepers” for a birth mother looking to place her child.
Luck is sometimes the residue of design. Chance favors the prepared mind. We have known successful adoptive parents who found a birth mother by placing flyers on bulletin boards in supermarkets, shoppings malls, laundromats, and college campuses.
If you are considering adoption and wonder where to begin, we recommend Randall Hicks' exceptional guide, Adopting in America: How to Adopt Within One Year (2018-2019)
Yes, interstate adoptions are common occurrences and they can involve either agency or parental placements. However, interstate adoptions are often more complicated and expensive as they must comply with the Interstate Compact on the Placement of Children (ICPC). This should not deter potential adoptive parents from considering interstate adoption, as a competent adoption attorney can navigate the requirements of the ICPC.
The ICPC is an agreement between all fifty states and some U.S. territories that allows for states to work together in the adoption process to safeguard the interests of the child. The ICPC was established to protect children being placed for adoption across state lines. The Compact outlines proper procedures and delineates responsibilities for all parties involved in the placement of a child. Particularly, in the event that an adoption is disrupted, the child will be returned to the sending state in the custody of the birth mother or the agency that initiated the placement.
Many adoption attorneys have questioned whether the ICPC is a net plus in the interstate adoption process. However, compliance with the ICPC is mandatory and a material violation of the ICPC is a very serious matter. The careless acts of an ignorant attorney or potential adoptive parents can result in the loss of the adoption, and even in criminal penalties depending on the significance of the violation. A child should never be taken across state lines for the purpose of an adoptive placement without ICPC approval from the sending and the receiving state.
Here are the list of persons who are eligible to adopt a child through the Virginia court system:
1. An individual who is a resident of Virginia.
2. An individual who is a resident of another state, in a direct placement adoption, where the birth mother gave her consent in a Virginia juvenile & domestic relations district court.
3. An individual who is a resident of another state, but who has custody of a child placed by a child-placing agency located in Virginia.
Adoptive parents are not required to pay legal or medical expenses of the birth mother, but it is usually the case that adoptive parents do so. It is not illegal for a birth mother to choose one set of adoptive parents over another based on their willingness to cover permissible expenses incurred by the birth mother.
The laws vary from state to state. States are concerned that a wealthy couple might take advantage of a vulnerable birth mother as well as birth mothers who might “game” the system and place a baby to the highest bidder. Virginia is one of the more restrictive states in what they allow adoptive parents to pay. It is one of the reasons why Virginia law is less "adoption friendly" than other states.
Virginia law in this area is found primarily in Va. Code § 63.2-1218. Virginia law authorizes adoptive parents to make the following payments for the benefit of a birth mother:
- Reasonable and customary services provided by a licensed or duly authorized child-placing agency and fees paid for such services.
- Payment or reimbursement for medical expenses and insurance premiums that are directly related to the birth mother's pregnancy and hospitalization for the birth of the child who is the subject of the adoption proceedings, for mental health counseling received by the birth mother or birth father related to the adoption, and for expenses incurred for medical care for the child.
- Payment or reimbursement for reasonable and necessary expenses for food, clothing, and shelter when, upon the written advice of her physician, the birth mother is unable to work or otherwise support herself due to medical reasons or complications associated with the pregnancy or birth of the child.
- Payment or reimbursement for reasonable expenses incurred incidental to any required court appearance including, transportation, food and lodging.
- Usual and customary fees for legal services in adoption proceedings.
If an expense is not otherwise authorized, it is illegal – a Class 6 Felony – for adoptive parents to give money, property, service, or any other thing of value, or advertise such, in relation to adopting a child.
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Of course the adopting parents will need the assistance of a competent adoption attorney. There will be agreements to draft and review. There will be court pleadings to draft and orders to present. There will be court hearings to schedule and evidence to organize.
Depending on the type of adoption, attorney involvement may vary. For example, in a stepparent adoption, there is no requirement for a consent hearing in the juvenile and domestic relations court and the Circuit Court procedures may consist only of filing a petition for adoption and attaching a sufficient documentary evidence that the presiding judge may enter a final order of adoption without a hearing. On the other hand, where a birth mother has placed a child directly with the adoptive parents, the attorney involvement ratchets up considerably.
It is vital that the birth mother (and perhaps the birth father) be represented by a separate attorney. There are many safeguards in an adoption to ensure that neither the birth mother nor the adoptive parents are being taken advantage of, and this is one of the most important safeguards. Many courts may not enter a final order of adoption involving a birth mother who has not been separately represented by a competent attorney. In most adoptions, the birth mother's legal expenses are covered by the adoptive parents.
It depends. In an agency placement, the agency acts as the intermediary and there is no need for interaction between the birth parents and the adoptive parents. If they both consent, however, once the child and adoptive parents have been matched, the adoptive parents and birth parents may choose to meet and continue communication (although again this is not required).
In a direct placement adoption, the birth mother and the adoptive parents must exchange identifying information, including full names, addresses, and physical, mental, social and psychological information that might be helpful to the child. In a direct placement adoption, we believe those adoptions work best where the birth mother and the adoptive parents invest in each other’s lives prior to birth and maintain contact for some period of time after birth.
There is no hard and fast requirement that adoptive parents maintain contact with the birth parents. However, Virginia law encourages such contact through post adoption contact and communication agreements in Va. Code § 63.2-1220.2
A post-adoption contact and communication agreement may include provisions for the sharing of information about the child, including sharing of photographs of the child and information about the child's education, health, and welfare. However, failure to enter into such an agreement, or even a violation of the agreement, will not affect the validity of (i) the consent to the adoption, (ii) the voluntary relinquishment of parental rights, (iii) the voluntary or involuntary termination of parental rights, or (iv) the finality of the adoption.
In a direct placement adoption proceeding under Virginia law, a birth mother almost gives her consent in court, in the presence of the adoptive parents and the presiding judge. a birth parent may revoke his or her consent for any reason for up to seven days from its execution; however, such seven-day revocation period may be waived in writing at the time of consent provided that the child is at least 10 days old and the consenting birth parent acknowledges having received independent legal counsel regarding the effect of such waiver.
The only other time Virginia law allows a birth mother to revoke her consent is upon a court finding of fraud or unacceptable duress in the adoption process or upon written, mutual consent of the birth parents and the adoptive parents.
In our experience, the likelihood of a birth mother revoking her consent is very low. We counsel our clients that the best adoptions are between friends, meaning, that when a birth mother and an adoptive couple commit themselves to one another, there is almost no chance the birth mother will come to change her mind.
The Virginia Birth Father Registry is a confidential database established by the Virginia Department of Social Services. Under Virginia law, "[a]ny man who has engaged in sexual intercourse with a woman is deemed to be on legal notice that a child may be conceived and that the man is entitled to all legal rights and obligations resulting therefrom. Lack of knowledge of the pregnancy does not excuse failure to timely register with the Virginia Birth Father Registry."
The Registry will then notify a father who has registered if his child is placed for adoption or if his parental rights are being terminated. If a father fails to register, and if he is not otherwise (i) an "acknowledged father," (ii) a "presumed father," or (iii) "adjudicated to be the father," he has in effect waived his right to receive notice of the termination of his parental rights and his consent will not be required during the adoption proceedings.
Under Virginia law, an acknowledged father's status can be established in several ways, most notably, by a scientifically reliable genetic test or by a voluntary written statement of the father and mother made under oath acknowledging paternity.
A man is a presumed father when he and the mother of the child are married to each other and the child is born during the marriage or within 300 days of their date of separation, as evidenced by a written agreement or decree of separation, or within 300 days after the marriage is terminated by death or divorce. Such a presumption may be rebutted by sufficient evidence that would establish the paternity of another man or the improbability of cohabitation with the birth mother for a period of at least 300 days prior to the birth of the child. These rules are found in paragraph D of Va. Code § 63.2-1202.
A man is adjudicated to be the father typically through a court order, often in a paternity suit seeking child support. Va. Code § 20-49.8.
The Virginia Birth Father Registry does not eliminate the need for a birth father's consent in all situations. A birth father's consent will generally be required by a birth father who (i) is an acknowledged father under Va. Code § 20-49.1, (ii) is an adjudicated father under Va Code § 20-49.8, (iii) is a presumed father under subsection D of Va. Code § 63.2-1202, or (iv) has actually registered with the Virginia Birth Father Registry pursuant to Va. Code § 63.2-1249 et seq.
As noted elsewhere on this website, if a father fails to register with the Virginia Birth Father Registry, and if he is not otherwise (i) an "acknowledged father," (ii) a "presumed father," or (iii) "adjudicated to be the father," he has in effect waived his right to receive notice of the termination of his parental rights and his consent will not be required during the adoption proceedings.
But a careful adoption attorney may want to use a belts and suspenders approach and not rely merely on the Virginia Birth Father Registry. If a consent can be easily obtainable, even if not required, it may be wise to do so. Furthermore, "[n]o consent shall be required of a birth father if he denies under oath and in writing the paternity of the child." Va. Code § 63.2-1202. If a birth father is willing to provide such a denial, it ought to be obtained.
In Virginia it is lawful for a same-sex married couple to adopt a child.
Generally speaking, under Virginia law, unless two persons are married to each other, they are prohibited under Virginia law from jointly adopting the same child. There are a few statutory exceptions, found in Va. Code § 63.2-1201.1, applicable to a married couple who has divorced.
1. A man and woman previously married to each other who stood in loco parentis to a child during their marriage to each other, and who could have adopted or readopted the child pursuant to this chapter while married to each other, but whose marriage is void, has been annulled or has dissolved, may adopt or readopt the child pursuant to the provisions in this chapter that are applicable to married persons.
2. An individual previously married to a parent of a child by birth or adoption, and who stood in loco parentis to that child during the marriage, and who could have adopted the child pursuant to § 63.2-1241 during the marriage, may, with the consent of the prior spouse who is a parent of the child by birth or adoption, adopt the child, after the marriage has been dissolved, annulled or voided, pursuant to the provisions of this chapter that are applicable to step-parents.
An unmarried person is allowed to adopt a child under Virginia law.
Under Virginia law, a home study must be conducted by a licensed or duly authorized child-placing agency in almost every adoption. The purpose of the home study is to ascertain:
1. whether the prospective adoptive parents are financially able, morally suitable, and in satisfactory physical and mental health to enable them to care for the child.
2. the physical and mental condition of the child.
3. the circumstances under which the child came to live, or will be living, in the home of the prospective adoptive family.
4. what fees have been paid by the prospective adoptive family or on their behalf in the placement and adoption of the child.
5. whether both the birth parents and adoptive parents have been counseled on alternatives to this particular adoption.
6. if the birth parents and adoptive parents have exchanged certain identifying information.
7. whether or not there have been any violations of the statute concerning authorized and unauthorized payments between the adoptive and birth parents.
We recommend that potential adoptive parents complete their home study even while their search is underway for a birth mother. It can be supplemented and updated as needed once the child being adopted has been born.
The Adoption Tax Credit is not a deduction on your taxes, but rather a credited amount that acts as payment toward your tax liability.
For calendar year 2017, the amount of the adoption tax credit is $13,840, assuming your modified adjusted gross income is equal to or less than $207,580. If your modified adjusted gross income is more than $207,580 but less than $247,580, you will receive a reduced tax credit. If your modified adjusted gross income is $247,580 or more for the year, you are not eligible for the tax credit.
In addition to the tax credit, the tax laws provide that a portion of the expenses paid by your employer for a qualifying adoption may be excludable from your gross income.
The rules governing when you may claim the adoption tax credit and what expenses qualify are intricate. Not every adoption is eligible for the credit. For instance, stepparent adoptions do not qualify. The purpose of this post is to let you know such a credit exists and for many couples it is a significant offset to the costs of an adoption.
For more information, please see this excellent post.